SUPREME COURT PUTS LIMIT ON PRIVACY EXPECTATIONS

Divided Justices Weigh In After Police In Calgary Used Electricity
Records To See If Man Was Growing Marijuana

The right to privacy in one's home is not absolute, the Supreme Court
of Canada said Wednesday in a ruling that allowed police to conscript
a Calgary power company to collect details of a customer's electricity
use to determine if he was growing marijuana.

In a sharply divided decision, the court split into three camps on
whether it violates a consumer's constitutional right to privacy to
force commercial service providers to help out police when they do not
have search warrants.

"The Constitution does not cloak the home in an impenetrable veil of
privacy," Justice Marie Deschamps wrote in the lead opinion.

"To expect such protection would not only be impractical, it would
also be unreasonable."

In a strong dissent, Chief Justice Beverley McLachlin and Justice
Morris Fish warned the court against taking an "incremental but
ominous step toward the erosion of the right to privacy."

The two judges, describing the home "as the most private of
dwellings," concluded that "a reasonable person" would not expect that
details of electricity use, which can detect such things as when a
person routinely goes to bed and does chores, should be handed over to
police without a judge's prior approval.

"When we subscribe for cable services, we do not surrender our
expectation of privacy in respect of what we access on the Internet,
what we watch on our television sets, what we listen to on our radios,
or what we send and receive by email on our computers," they wrote.

"Likewise, when we subscribe for public services, we do not authorize
the police to conscript the utilities concerned to enter our homes,
physically or electronically, for the purpose of pursuing their
criminal investigations without prior judicial authorization."

The latest decision overturns an Alberta Court of Appeal victory for
Daniel Gomboc and restores his earlier convictions for growing and
selling marijuana.

Calgary police, while investigating another matter in Gomboc's
neighbourhood in 2004, detected the smell of a marijuana grow
operation and noticed condensation on his windows and moisture pouring
from ice-caked vents. Unlike other homes nearby, there was no snow on
his roof.

The police then asked Enmax, Gomboc's power supplier, to install a
"digital recording ammeter" (DRA) to obtain a detailed graph printout
of five days of power consumption at his home. The officers used the
revealing information to obtain a search warrant.

Police seized 165 kilograms of bulk marijuana and another 206 grams of
processed, bagged marijuana, and Gomboc was convicted of growing and
trafficking marijuana.

DRA's are also widely referred to as "smart metres" and in Ontario
they are already installed in millions of homes as part of a move to
create a "smart grid" of electrical consumption.

Ontario's privacy commissioner has warned that "privacy is the smart
grid's sleeper issue" because they can potentially reveal a lot about
a consumers' lifestyle, from the time they turn on their lights in the
morning until they shut them off at night.

The Supreme Court, however, found that the information in question was
not personal enough to merit constitutional protection.

"A critical factual consideration, on which much of the disagreement
in this case turns, is the degree to which the use of DRA technology
reveals private information," wrote Deschamps. She concluded that the
DRA did not disclose data that yielded "any useful information at all
about household activities of an intimate or private nature that form
part of the inhabitants' biographical core data."